The US Deputy Solicitor General argued that permitting a lawsuit against AT&T …

During a hearing before the Ninth Circuit Court of Appeals, Deputy Solicitor General Gregory Garre argued that AT&T customers should not be permitted to continue their lawsuit against AT&T over the company's involvement in the NSA wiretapping scandal. According to Garre, the NSA program is so sensitive that permitting a court to evaluate evidence of potentially illegal government misconduct would undermine the federal government's intelligence-gathering abilities.

Garre's arguments were met with criticism by Judge Harry Pregerson, who questioned whether the executive branch should have absolute authority over determining what constitutes a state secret. Pregerson asked Garre, "Are you saying the courts are to rubber-stamp the determination of the executive of what's a state secret?" Citing a prior ruling, Garre says that the judiciary is expected to give the "utmost deference" to security concerns, which prompted Judge Michael Hawkins to ask if "utmost deference" is equivalent to abdication.

Garre says that the NSA does not monitor domestic communications exclusively between persons in the United States without warrants, but the government will not provide such an assurance under oath. Despite broad public knowledge of the NSA wiretap program's existence, the federal government continues to assert that national security would be threatened if any evidence were presented that merely confirms the program's existence, even if no other information about the program is exposed in the process.

Following a similar line of obfuscated reasoning, attorney Michael Kellogg—representing AT&T—explains that no evidence can be presented that could potentially confirm that AT&T played a role in the NSA program, because the government has said that AT&T's involvement with the government program is a state secret. "I feel like I'm Alice in wonderland," Judge M. Margaret McKeown complained, referring to the paradoxical nature of the government's claims. Evidence of AT&T's complicity in the program includes phone conversation logs that the NSA accidentally mailed to an organization that was under surveillance.

As this case winds its way through the court system, the federal government's position has become increasingly tangled. Garre's arguments against allowing the litigation to go forward amount to an assertion that the executive branch is above the law in matters of national security. When Garre attempted to argue that the courts are an improper setting for evaluating claims of government wrongdoing in instances where national security could be compromised and that there are "other avenues" through which to pursue such concerns, Judge Pregerson jokingly asked Garre if he was referring to impeachment.

Much like the courtroom battle that emerged after the 1971 leak of the Pentagon Papers, during which the Nixon administration also attempted to invoke the state secrets privilege, the current legal battle over the NSA wiretap program raises difficult questions about the scope of executive authority. Because of the legislative branch's lack of fortitude, it seems likely that an investigation into allegations of AT&T's complicity in government wrongdoing will only occur if the judicial branch decides that it can press forward.